EXHIBIT 10.1
IRIS INTERNATIONAL, INC
KEY EMPLOYEE AGREEMENT
FOR
PETER DONATO
IRIS INTERNATIONAL, INC., a Delaware corporation (the "COMPANY"),
agrees with you as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 The Company will employ you and you shall serve in an
executive capacity as CORPORATE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER, and perform the duties customarily
associated with such capacity from time to time as the Company
shall reasonably designate or as shall be reasonably
appropriate and necessary in connection with such employment.
You will commence service in this capacity on the date set
forth in SECTION 2.1 below.
1.2 Subject to SECTION 4 below, you will, to the best of your
ability, devote your full time and best efforts to the
performance of your duties hereunder and the business and
affairs of the Company. You will report to the Company's Chief
Executive Officer ("CEO"). You will also have primary
responsibility for communicating with the Company's Audit
Committee and assisting the committee in discharging its
duties.
1.3 You will duly, punctually and faithfully perform and observe
any and all rules and regulations which the Company may now or
shall hereafter establish governing the conduct of its
business, except to the extent that such rules and regulations
may be inconsistent with your executive position.
2. TERM OF EMPLOYMENT; TERMINATION.
2.1 The commencement date of your employment shall be August 6,
2007 (your "START DATE"); PROVIDED that if by your Start Date,
the Corporation has not filed its Quarterly Report on Form
10-Q for the quarter ended June 30, 2007 (the "FORM 10-Q"),
then your appointment as Chief Financial Officer will not
occur until the day immediately following the day the
Corporation files the Form 10-Q.
2.2 Unless otherwise mutually agreed in writing, this Agreement
and your employment by the Company pursuant to this Agreement
shall be terminated on the earliest of:
(a) your death, or any illness, disability or other
incapacity that renders you physically unable
regularly to perform your duties hereunder for a
period in excess of one hundred twenty (120)
consecutive days or more than one hundred eighty
(180) days in any consecutive twelve (12) month
period;
(b) thirty (30) days after you, for any reason, give
written notice to the Company of your resignation; or
(c) immediately if the Company, with or without cause,
gives written notice to you of your termination.
2.3 The determination regarding whether you are physically unable
regularly to perform your duties (as described in SECTION
2.2(a)) shall be made by the Board of Directors.
2.4 Any notice required pursuant to this SECTION 2 shall be given
in accordance with the provisions of SECTION 9 hereof. The
exercise of either party's right to terminate this Agreement
pursuant to SECTIONS 2.2(b) or (c) is not exclusive and shall
not effect either party's right to seek remedies for the other
party's breach, if any, giving rise to such termination.
2.5 You may be terminated with or without cause. If you are
terminated without cause, you will be entitled to certain
severance benefits as described in this Agreement. You shall
be deemed terminated "FOR CAUSE" if, in the reasonable
determination of the Company, you (a) commit an act that is
fraudulent, dishonest or a material breach of the Company's
policies, including wrongful disclosure of any trade secrets
or other confidential information of the Company, or material
breach of SECTION 4 of this Agreement or any material
provision of the Employee Confidentiality Agreement (as
defined in SECTION 5), (b) are convicted of a felony under
federal, state, or local law applicable to the Company or (c)
intentionally refuse, without proper cause, to substantially
perform duties after a demand for such performance has been
delivered in writing by the Company's Chief Executive Officer
or the Board of Directors, which notice shall specify the
alleged instance of breach, and shall provide you with
reasonable time in which to remedy such breach.
3. COMPENSATION; BENEFITS; AND INVESTMENT RIGHTS.
3.1 The Company shall pay to you for the services to be rendered
hereunder a base salary at an annual rate of $250,000 subject
to increases in accordance with the policies of the Company,
as determined by its Board of Directors, in force from time to
time, payable in installments in accordance with Company
policy. You shall also be entitled to all rights and benefits
for which you shall be eligible under bonus, pension, group
insurance, long-term disability, life insurance,
profit-sharing and other Company benefits which may be in
force from time to time and provided specifically to you or
for the Company's executive officers generally.
3.2 You will be awarded a 5 year incentive stock option (ISO) to
purchase shares of the Company's Common Stock, which option
shall have a Black-Scholes value equal to $375,000 on the
Start Date. The option shall be issued pursuant to the
Company's 2007 Stock Incentive Plan (the "2007 PLAN"), have an
exercise price equal to the closing sales price of the
Company's Common Stock on the Start Date, vest over 4 years,
25% of which will vest on the first anniversary of your Start
Date and thereafter 6.25% will vest in equal quarterly
installments with the first such installment vesting on
September 30, 2008, and otherwise be issued on terms
consistent with the Company's standard form of incentive stock
option agreement.
2
Additionally, on the date the Corporation files with the
Securities and Exchange Commission a registration statement on
Form S-8 with respect to the 2007 Plan (the "FORM S-8 FILING
DATE"), you will be awarded a restricted stock grant to
purchase at a purchase price of $0.01 per share, a number of
shares of the Company's Common Stock determined by dividing
$125,000 by the closing sales price of the Company's Common
Stock on the Form S-8 Filing Date, which restricted shares
shall vest over 4 years, 25% on the first anniversary of your
Start Date and thereafter 6.25% will vest in equal quarterly
installments with the first such installment vesting on
September 30, 2008, provide that those shares which have not
yet vested at the time of termination of your employment shall
be subject to repurchase by the Company at the original price
you paid for such shares upon such termination of your
employment (any vested shares shall not be subject to such
repurchase right), and otherwise be issued on terms consistent
with the Company's standard form of restricted stock
agreement. In addition to the foregoing, at the anniversary
date of your employment, you will be eligible for further
option and/or equity awards, commensurate with other senior
executive officers, based on your performance as determined by
the CEO and the Compensation Committee of the Board of
Directors.
3.3 You shall be eligible to participate in the Company's ESPP
Program as in effect from time to time. The ESPP Program
currently provides that employees may purchase common stock of
the Company at a 15% discount from the market price in an
aggregate amount up to 15% of your total cash compensation.
3.4 You shall also be eligible for an annual bonus to be
determined by the CEO and Compensation Committee of the Board
of Directors in accordance with the Company's bonus program
for executive officers. The bonus program provides for cash
and stock-based compensation, with the stock-based
compensation comprised of incentive stock options and
restricted stock awards.
3.5 You shall be entitled to four (4) weeks of paid vacation per
year to be taken at such time as will not interfere with the
performance of your duties. You will also be entitled to
illness days during the term of this Agreement consistent with
the Company's standard practice for its employees generally as
in effect from time to time.
3.6 In the event that (i) you are terminated without cause at any
time, pursuant to SECTION 2.2(c) hereof and (ii) you deliver
to the Company a signed settlement agreement and general
release in the form attached hereto as EXHIBIT A (the
"RELEASE") and satisfy all conditions to make the Release
effective, the Company shall pay you the following: (a) an
amount that does not exceed two times the maximum amount that
may be taken into account under a qualified plan pursuant to
section 401(a)(17) of the Internal Revenue Code (the "CODE")
for the year in which such termination occurs; and (b) an
amount that is the difference between twelve (12) months of
base salary (based on the monthly rate of base salary in
effect immediately prior to such termination) and the amount
determined under subsection (a), above; PROVIDED, HOWEVER,
that in no event shall the sum of the amounts computed under
subsections (a) and (b), above, exceed twelve (12) months of
base salary (based on the monthly rate of base salary in
effect immediately prior to such termination). At the choice
of the Company, payment of the amount computed under
subsection (a) may be made in the form of a lump sum payment
within ten (10) days of the termination or through regular
payroll payments in equal amounts for a period that begins in
the month of termination and ends no later than twelve (12)
months after the month of termination, and payment of the
amount computed under subsection (b) may be made in the form
of a lump sum payment within ten (10) days of the termination
or through regular payroll payments in equal amounts for a
period that begins in the month of termination and ends no
later than the
3
15th day of the third month of the calendar year following the
year in which you are terminated. The parties intend that the
compensation payable pursuant to subsection (b) above shall be
treated as a short-term deferral as that term is used in
section 409A of the Code and the regulations promulgated
thereunder (collectively, "SECTION 409A"). The parties intend
that each of the payments payable pursuant to (a) above shall
be treated as a separate payment for purposes of section 409A
and excluded from the definition of "deferred compensation"
pursuant to the regulations promulgated thereunder regarding
separation pay payable upon an involuntary separation from
service. Termination without cause shall include "constructive
termination" in the event of a material diminution of your
authority, duties or responsibilities as described in SECTION
1 above and/or a material breach of this Agreement by the
Company; provided that before any constructive termination
occurs, you first give the Company notice of the event or
other circumstances giving rise to such constructive
termination within 90 days of the occurrence thereof and
afford the Company the right to cure the event or other
circumstances giving rise to such constructive termination for
a period of 30 days following the Company's receipt of such
notice.
4. OTHER ACTIVITIES DURING EMPLOYMENT.
4.1 Except with the prior written consent of the Company's Board
of Directors, you will not during the term of this Agreement
undertake or engage in any other employment, occupation or
business enterprise, other than ones in which you are a
passive investor in non-competitive businesses. You may engage
in civic and not-for-profit activities so long as such
activities do not materially interfere with the performance of
your duties hereunder.
4.2 Except as permitted by SECTION 4.3, you will not acquire,
assume or participate in, directly or indirectly, any
position, investment or interest, known by you to be adverse
or antagonistic to, or competitive with, the Company, its
businesses or prospects, financial or otherwise.
4.3 During the term of your employment by the Company (except on
behalf of the Company), you will not directly or indirectly,
whether as an officer, director, stockholder, partner,
proprietor, associate, representative, consultant, or in any
capacity whatsoever engage in, become financially interested
in, be employed by or have any business connection with any
other person, corporation, firm, partnership or other entity
whatsoever which were known by you to directly or indirectly
compete with the Company, throughout the world, in any line of
business engaged in (or planned to be engaged in) by the
Company; PROVIDED, HOWEVER, that anything above to the
contrary notwithstanding, you may own, as a passive investor,
securities of any competitor corporation, so long as your
direct holdings in any one such corporation shall not in the
aggregate constitute more than 1% of the publicly-traded
voting stock of such corporation.
5. PROPRIETARY INFORMATION AND INVENTIONS. You agree to sign and be bound
by the provisions of the Company's standard Employee Confidentiality
and Inventions Agreement (the "EMPLOYEE CONFIDENTIALITY AGREEMENT").
6. REMEDIES. Your duties under the Employee Confidentiality Agreement
shall survive termination of your employment with the Company. You
acknowledge that a remedy at law for any breach or threatened breach by
you of the provisions of the Employee
4
Confidentiality Agreement would be inadequate and you therefore agree
that the Company shall be entitled to injunctive relief in case of any
such breach or threatened breach.
7. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned by the Company or by you.
8. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein. If
moreover, any one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
9. NOTICES. Any notice which the Company is required or may desire to give
you shall be given by personal delivery or registered or certified
mail, return receipt requested, addressed to you at the address of
record with the Company, or at such other place as you may from time to
time designate in writing. Any notice which you are required or may
desire to give to the Company hereunder shall be given by personal
delivery or by registered or certified mail, return receipt requested,
addressed to the Company's Chief Executive Officer, at the Company's
principal office or at such other office as the Company may from time
to time designate in writing. The date of personal delivery or the date
of mailing any such notice shall be deemed to be the date of delivery
thereof.
10. WAIVER. If either party should waive any breach of any provisions of
this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of
this Agreement.
11. COMPLETE AGREEMENT; AMENDMENTS. The foregoing, together with the
Employee Confidentiality Agreement, is the entire agreement of the
parties with respect to the subject matter hereof and thereof and may
not be amended, supplemented, canceled or discharged except by written
instrument executed by both parties hereto.
12. HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof
nor to affect the meaning thereof.
13. CHOICE OF LAW. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by the laws of the
State of California, without giving effect to any choice of law
principles.
[SIGNATURES ON FOLLOWING PAGE]
5
IN WITNESS WHEREOF, the parties have executed this Key Employee
Agreement on the day and year written below.
IRIS INTERNATIONAL, INC.
By: /s/ Cesar M. Garcia
---------------------------------
Name: Cesar M. Garcia
Its: Chief Executive Officer
Dated: August 6, 2007
ACCEPTED AND AGREED TO
THIS 6TH DAY OF AUGUST, 2007
/s/ Peter Donato
- ------------------------------------
Peter Donato
6
EXHIBIT A
[IRIS LETTERHEAD]
RELEASE
[DATE]
EMPLOYEE NAME
ADDRESS
RE: SEPARATION TERMS AND GENERAL RELEASE AGREEMENT
Dear [NAME]:
This letter confirms the terms of your separation from the employment of IRIS
International, Inc. and consideration in exchange for your waiver and general
release of claims in favor of IRIS International, Inc. and its officers,
directors, employees, agents, representatives, subsidiaries, divisions,
affiliated companies, successors, and assigns (collectively, the "COMPANY" or
"IRIS").
1. TERMINATION DATE. Your employment with the Company will end effective
_____________ (the "TERMINATION DATE"). Between now and the Termination
Date, you should assist with any transition-related activities as
directed by the employee to whom you directly report.
2. ACKNOWLEDGMENT OF PAYMENT OF WAGES. On or before execution of this
release, we delivered to you a final paycheck that includes payment for
all accrued wages, salary, accrued and unused vacation time,
reimbursable expenses, and any similar payments due and owing to you
from the Company as of the Termination Date (collectively referred to
as "WAGES"). You are entitled to these Wages regardless of whether you
sign this Separation Terms and General Release Agreement (the
"AGREEMENT").
3. CONSIDERATION FOR RELEASE. In consideration of the waiver and release
of claims set forth in Paragraphs 7 and 8 below, and in exchange for
your signing this Agreement, the Company agrees to provide you with the
post-termination payments (the "SEVERANCE PAYMENTS") described in
Section 3.6 of that certain IRIS International, Inc. Key Employee
Agreement for Peter Donato, dated ___________, 2007 (the "IRIS OFFER
LETTER"). The Severance Payments are in addition to any amounts owed to
you by the Company. You acknowledge and agree that you are not
otherwise entitled to receive the Severance Payments. You understand
that if you do not sign the Agreement, or if you revoke the signed
Agreement as described in Paragraph 19 below (if applicable), the
Company has no obligation to provide you with the Severance Payments.
4. COBRA CONTINUATION COVERAGE. Your Company provided health coverage will
end on your Termination Date. If you are eligible for, and timely elect
COBRA continuation, you may continue health coverage pursuant to the
terms and conditions of COBRA at your own expense. Our Human Resources
Department will contact you shortly after your Termination Date. All
other insured benefit coverage (e.g., life insurance, disability
insurance) will also end on your Termination Date.
5. RETURN OF COMPANY PROPERTY. By signing below, you represent that you
have returned all the Company property and data of any type whatsoever
that was in your possession or control.
6. CONFIDENTIAL INFORMATION. You hereby acknowledge that as a result of
your employment with the Company you have had access to the Company's
confidential information. You acknowledge your continuing obligations
under the Employee Confidentiality Agreement you have previously
executed, and you agree you will hold all such confidential information
in strictest confidence and that you may not make any use of such
confidential information. You further confirm that you have delivered
to the Company all documents and data of any nature containing or
pertaining to such Confidential Information and that you have not taken
with you any such documents or data or any copies thereof.
7. GENERAL RELEASE AND WAIVER OF CLAIMS.
7.1. The payments and agreements set forth in this Agreement fully
satisfy any and all accrued salary, vacation pay, bonus and
commission pay, stock-based compensation, profit sharing,
termination benefits or other compensation to which you may be
entitled by virtue of your employment with the Company or your
termination of employment. You acknowledge that you have no
claims and have not filed any claims against the Company based
on your employment with or the separation of your employment
with the Company.
7.2. To the fullest extent permitted by law, you hereby release and
forever discharge the Company, its successors, subsidiaries
and affiliates, directors, shareholders, current and former
officers, agents and employees (all of whom are collectively
referred to as "RELEASEES") from any and all existing claims,
demands, causes of action, damages and liabilities, known or
unknown, that you ever had, now have or may claim to have had
arising out of or relating in any way to your employment or
separation from employment with the Company including, without
limitation, claims based on any oral, written or implied
employment agreement, claims for wages, bonuses, commissions,
stock-based compensation, expense reimbursement, and any
claims that the terms of your employment with the Company, or
the circumstances of your separation, were wrongful, in breach
of any obligation of the Company or in violation of any of
your rights, contractual, statutory or otherwise. Each of the
Releasees is intended to be a third party beneficiary of the
General Release and Waiver of Claims set forth in this
Paragraph 7.
(a) RELEASE OF STATUTORY AND COMMON LAW CLAIMS. Such
rights include, but are not limited to, your rights
under the following federal and state statutes: the
Employee Retirement Income Security Act (ERISA)
(regarding employee benefits); the Occupational
Safety and Health Act (safety matters); the Family
and Medical Leave Act of 1993; the Worker Adjustment
and Retraining Act ("WARN") (notification
requirements for employers who are curtailing or
closing an operation) and common law; tort; wrongful
discharge; public policy; workers' compensation
retaliation; tortious interference with contractual
relations, misrepresentation, fraud, loss of
consortium; slander, libel, defamation, intentional
or negligent infliction of emotional distress; claims
for wages, bonuses, commissions, stock-based
compensation or fringe benefits; vacation pay; sick
pay; insurance reimbursement, medical expenses, and
the like.
2
(b) RELEASE OF DISCRIMINATION CLAIMS. You understand that
various federal, state and local laws prohibit age,
sex, race, disability, benefits, pension, health and
other forms of discrimination, harassment and
retaliation, and that these laws can be enforced
through the U.S. Equal Employment Opportunity
Commission, the National Labor Relations Board, the
Department of Labor, and similar state and local
agencies and federal and state courts. You understand
that if you believe your treatment by the Company
violated any laws, you have the right to consult with
these agencies and to file a charge with them.
Instead, you have decided voluntarily to enter into
this Agreement, release the claims and waive the
right to recover any amounts to which you may have
been entitled under such laws, including but not
limited to, any claims you may have based on age or
under the Age Discrimination in Employment Act of
1967 (ADEA; 29 U.S.C. Section 621 et. seq.) (age);
the Older Workers Benefit Protection Act ("OWBPA")
(age); Title VII of the Civil Rights Act of 1964
(race, color, religion, national origin or sex); the
1991 Civil Rights Act; the Vocational Rehabilitation
Act of 1973 (disability); The Americans with
Disabilities Act of 1990 (disability); 42 U.S.C.
Section 1981, 1986 and 1988 (race); the Equal Pay Act
of 1963 (prohibits pay differentials based on sex);
the Immigration Reform and Control Act of 1986;
Executive Order 11246 (race, color, religion, sex or
national origin); Executive Order 11141 (age);
Vietnam Era Veterans Readjustment Assistance Act of
1974 (Vietnam era veterans and disabled veterans);
and California state statutes and local laws of
similar effect.
7.3. Releasees and you do not intend to release claims (i) which
you may not release as a matter of law (including, but not
limited to, indemnification claims under applicable law); (ii)
for unemployment, state disability and/or paid family leave
insurance benefits pursuant to the terms of applicable state
law; (iii) for any benefit entitlements that are vested as of
the Termination Date pursuant to the terms of a
Company-sponsored benefit plan governed by the federal law
known as "ERISA"; and (iv) for vested stock and/or vested
option shares pursuant to the written terms and conditions of
your existing stock and stock option grants and agreements
existing as of the Termination Date. To the fullest extent
permitted by law, any dispute regarding the scope of this
general release shall be determined by an arbitrator under the
procedures set forth in paragraph 12.
8. WAIVER OF UNKNOWN CLAIMS. You expressly waive any benefits of Section
1542 of the Civil Code of the State of California (and any other laws
of similar effect), which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
9. COVENANT NOT TO SUE.
9.1. To the fullest extent permitted by law, you agree that you
will not now or at any time in the future pursue any charge,
claim, or action of any kind, nature and character whatsoever
against any of the Releasees, or cause or knowingly permit any
such charge, claim or
3
action to be pursued, in any federal, state or municipal
court, administrative agency, arbitral forum, or other
tribunal, arising out of any of the matters covered by
paragraphs 7 and 8 above.
9.2. You further agree that you will not pursue, join, participate,
encourage, or directly or indirectly assist in the pursuit of
any legal claims against the Releasees, whether the claims are
brought on your own behalf or on behalf of any other person or
entity.
9.3. Nothing in this paragraph shall prohibit you from: (1)
providing truthful testimony in response to a subpoena or
other compulsory legal process, and/or (2) filing a charge or
complaint with a government agency such as the Equal
Employment Opportunity Commission, the National Labor
Relations Board or applicable state anti-discrimination
agency.
10. NON-DISPARAGEMENT. You agree that you will not make any statement,
written or oral, or engage in any conduct that is or could reasonably
be construed to be disparaging of the Company or its products,
services, agents, representatives, directors, officers, shareholders,
attorneys, employees, vendors, affiliates, successors or assigns, or
any person acting by, through, under or in concert with any of them.
Nothing in this paragraph shall prohibit you from providing truthful
testimony in response to a subpoena or other compulsory legal process.
11. LEGAL AND EQUITABLE REMEDIES. You and the Company agree that either
party shall have the right to enforce this Agreement and any of its
provisions by injunction, specific performance or other equitable
relief without prejudice to any other rights or remedies that either
party may have at law or in equity for breach of this Agreement.
12. ARBITRATION OF DISPUTES. Except for claims for injunctive relief
arising out of a breach of the Employee Confidentiality Agreement, you
and the Company agree to submit to mandatory binding arbitration any
future disputes between you and the Company, including any claim
arising out of or relating to this Agreement. By signing below, you and
the Company waive any rights you and the Company may have to trial by
jury of any such claims. You agree that the American Arbitration
Association will administer any such arbitration(s) under its National
Rules for the Resolution of Employment Disputes, with administrative
and arbitrator's fees to be borne by the Company. The arbitrator shall
issue a written arbitration decision stating his or her essential
findings and conclusions upon which the award is based. A party's right
to review of the decision is limited to the grounds provided under
applicable law. The parties agree that the arbitration award shall be
enforceable in any court having jurisdiction to enforce this Agreement.
This Agreement does not extend or waive any statutes of limitations or
other provisions of law that specify the time within which a claim must
be brought. Notwithstanding the foregoing, each party retains the right
to seek preliminary injunctive relief in a court of competent
jurisdiction to preserve the status quo or prevent irreparable injury
before a matter can be heard in arbitration.
13. ATTORNEYS' FEES. If any legal action arises or is brought to enforce
the terms of this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys' fees, costs and expenses from the
other party, in addition to any other relief to which such prevailing
party may be entitled, except where the law provides otherwise. The
costs and expenses that may be recovered exclude arbitration fees
pursuant to paragraph 12 above.
4
14. CONFIDENTIALITY PROVISION. You agree to keep the contents, terms and
conditions of this Agreement confidential and not disclose them except
to your spouse or domestic partner, attorneys, accountant or as
required by subpoena or court order.
15. MATERIALITY OF BREACH. Any breach of the provisions contained in
paragraphs 6 through 10 and/or 14 will be deemed a material breach of
this Agreement.
16. NO ADMISSION OF LIABILITY. You agree that this Agreement is not an
admission or evidence of any wrongdoing or liability on the part of the
Company, its representatives, attorneys, agents, partners, officers,
shareholders, directors, employees, subsidiaries, affiliates,
divisions, successors or assigns. This Agreement will be afforded the
maximum protection allowable under California Evidence Code Section
1152 and/or any other state or Federal provisions of similar effect.
17. INDEMNIFICATION. This Release shall not apply with respect to any
claims arising under your existing rights to indemnification and
defense pursuant to (a) the articles and bylaws of the Company for acts
as a director and/or officer, (b) any indemnification agreement with
IRIS, or (c) your rights of insurance under any director and officer
liability policy in effect covering the Company's directors and
officers.
18. REVIEW OF AGREEMENT. You may not sign this Agreement prior to your
Termination Date. You may take up to twenty-one (21) days from the date
you receive this Agreement, or until your Termination Date, whichever
date is later, to consider this Agreement and release and, by signing
below, affirm that you were advised by this letter to consult with an
attorney before signing this Agreement and were given ample opportunity
to do so. You understand that this Agreement will not become effective
until you return the original properly signed Agreement to IRIS Human
Resources, attention: Teri Forsythe, at the Company's principal
executive officers in Chatsworth, California, and after expiration of
the revocation period without revocation by you.
[IF EMPLOYEE IS OVER 40 AT THE TIME OF TERMINATION, THE FOLLOWING
SECTION 19 APPLIES:
19. REVOCATION OF AGREEMENT. You acknowledge and understand that you may
revoke this Agreement by faxing a written notice of revocation to our
Human Resources Department, Attention Teri Forsythe at (818)
_______________ any time up to seven (7) days after you sign it. After
the revocation period has passed, however, you may no longer revoke
your Agreement.
IF EMPLOYEE IS UNDER 40 AT THE TIME OF TERMINATION, THE FOLLOWING
SECTION 19 APPLIES:
19. INTENTIONALLY OMITTED.]
20. ENTIRE AGREEMENT. This Agreement together with the Employee
Confidentiality Agreement that you previously executed is the entire
Agreement between you and the Company with respect to the subject
matter of this Agreement and supersedes all prior negotiations and
agreements, whether written or oral, relating to this subject matter.
You acknowledge that neither the Company, nor its agents or attorneys,
made any promise or representation, express or implied, written or
oral, not contained in this Agreement to induce you to execute this
Agreement. You acknowledge that
5
you have signed this Agreement knowingly, voluntarily and without
coercion, relying only on such promises, representations and warranties
as are contained in this document. You understand that you do not waive
any right or claim that may arise after the date this Agreement is
executed.
21. MODIFICATION. By signing below, you acknowledge your understanding that
this Agreement may not be altered, amended, modified, or otherwise
changed in any respect except by another written agreement that
specifically refers to this Agreement, executed by the Company's
authorized representatives and you.
22. GOVERNING LAW. This Agreement is governed by, and is to be interpreted
according to, the laws of the State of California.
23. SAVINGS AND SEVERABILITY CLAUSE. Should any court, arbitrator or
government agency of competent jurisdiction declare or determine any of
the provisions of this Agreement to be illegal, invalid or
unenforceable, the remaining parts, terms or provisions shall not be
affected thereby and shall remain legal, valid and enforceable.
Further, it is the intention of the parties to this Agreement that, if
a court, arbitrator or agency concludes that any claim under paragraph
7 above may not be released as a matter of law, the General Release in
paragraph 7 and the Waiver Of Unknown Claims in paragraph 8 shall
otherwise remain effective as to any and all other claims.
If this Agreement accurately sets forth the terms of your separation from the
Company and if you voluntarily agree to accept the terms of the severance
package offered please sign below no earlier than your Termination Date and
return it to Teri Forsythe.
PLEASE REVIEW CAREFULLY. THIS AGREEMENT CONTAINS
A GENERAL RELEASE OF KNOWN AND UNKNOWN CLAIMS.
Sincerely,
[NAME]
REVIEWED, UNDERSTOOD AND AGREED:
By:
--------------------------------------------
[NAME]
Date:
--------------------------------------------
DO NOT SIGN PRIOR TO YOUR TERMINATION DATE
6